EXHIBIT 4(a)(5)
FOURTH AMENDMENT
Fourth Amendment, dated as of November 18, 1999 (this "Amendment"), to the
Amended and Restated Credit Agreement, dated as of December 22, 1997 (as
heretofore and hereafter amended, supplemented or otherwise modified from time
to time, the "Credit Agreement"), among Imperial Sugar Company, formerly known
as Imperial Xxxxx Corporation (the "Borrower"), the several Lenders ("Lenders")
from time to time parties thereto, Xxxxxx Commercial Paper, Inc., as Syndication
Agent, Xxxxxx Brothers Inc., as Arranger and Xxxxxx Trust and Savings Bank, as
Administrative Agent and Collateral Agent.
WITNESSETH
Whereas, the Borrower has requested that the Lenders amend certain
provisions of the Credit Agreement;
Whereas, the Lenders have agreed to such amendments only upon the terms and
subject to the conditions set forth herein;
Now, Therefore, in consideration of the premises and the mutual covenants
herein contained, the parties hereto agree as follows:
Section 1. Defined Terms. Unless otherwise defined herein, capitalized
terms which are defined in the Credit Agreement are used herein as therein
defined.
Section 2. Amendments to the Credit Agreement.
(a) The definition of the term "Consolidated Fixed Charges" appearing in
Section 1.1 of the Credit Agreement shall be amended to read as follows:
" "Consolidated Fixed Charges": for any period, the sum (without
duplication) of (a) Consolidated Interest Expense for such period, (b)
provision for cash income taxes made by the Borrower or any of its
Subsidiaries on a consolidated basis in respect of such period, (c) regularly
scheduled payments made in cash during such period on account of principal of
Indebtedness of the Borrower or any of its Subsidiaries (including scheduled
principal payments in respect of the Term Loans) other than (i) the repayment
of principal outstanding under the Tender Facilities at the final maturity
thereof, (ii) any repayment of the Loans made pursuant to Section 2.12(b)
hereof, and (iii) any repayments of the Loans made pursuant to Section
2.12(c) hereof and (d) dividends paid in cash during such period by the
Borrower or any of its Subsidiaries."
(b) Clause (b) of the definition of the term "Excess Cash Flow" contained
in Section 1.1 of the Credit Agreement shall be amended by adding the following
provision as clause (viii) thereof:
", and (viii) the aggregate amount of all prepayments of Loans made
with the proceeds of any Receivables Securitization Program or of any sale
of marketable securities."
(c) Clause (ii) of Section 2.12(b) of the Credit Agreement shall be
amended to read as follows:
"(ii) the Net Cash Proceeds of the sale or other disposition by the
Borrower of marketable securities owned by it shall not be required to be
applied to prepayments pursuant to this Section 2.12(b) to the extent that
such Net Cash Proceeds are applied (A) with respect to proceeds of any such
sale in an aggregate amount not to exceed $15,000,000, to the repayment of
Revolving Credit Loans no later than the date that is 60 days after the
date the Borrower receives such proceeds, and (B) in all other cases,
reasonably promptly after such sale, to the reinvestment by the Borrower in
other marketable securities of the same general type and quality and such
replacement securities are pledged pursuant to the Guarantee and Collateral
Agreement and the Control Agreement; and".
(d) The last sentence of Section 2.18(d) is hereby amended to read as
follows:
Notwithstanding the foregoing, no Tranche B Term Loan Lender shall
have the right to decline any mandatory prepayment of the Tranche B Term
Loans of such Lender required by Section 2.12(a) with respect to any
issuance of Capital Stock or Subordinated Debt, by Section 2.12(b) in
connection with a sale of marketable securities the proceeds of which are
used to repay Indebtedness (other than a prepayment of Revolving Credit
Loans required by Section 2.12(b)(ii)) or by Section 2.12(b)(iii).
(e) Sections 7.1(a), 7.1(b), 7.1(c) and 7.1(d) of the Credit Agreement
shall be amended to read as follows:
"(a) Consolidated Total Leverage Ratio. Permit the Consolidated
Total Leverage Ratio as at the last day of any period of four consecutive
fiscal quarters of the Borrower ending with any fiscal quarter set forth
below to exceed the ratio set forth below opposite such fiscal quarter:
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Consolidated Total
Fiscal Quarter Leverage Ratio
December 31, 1999 6.00 to 1.00
March 31, 2000 5.75 to 1.00
June 30, 2000 6.00 to 1.00
September 30, 2000 5.25 to 1.00
December 31, 2000 5.50 to 1.00
March 31, 2001 5.50 to 1.00
June 30, 2001 5.20 to 1.00
September 30, 2001 4.60 to 1.00
December 31, 2001 4.60 to 1.00
Thereafter 4.40 to 1.00
(b) Consolidated Senior Leverage Ratio. Permit the Consolidated
Senior Leverage Ratio as at the last day of any period of four consecutive
fiscal quarters of the Borrower ending with any fiscal quarter set forth
below to exceed the ratio set forth below opposite such fiscal quarter:
Consolidated Senior
Fiscal Quarter Leverage Ratio
December 31, 1999 3.35 to 1.00
March 31, 2000 3.35 to 1.00
June 30, 2000 3.35 to 1.00
September 30, 2000 2.75 to 1.00
December 31, 2000 3.20 to 1.00
March 31, 2001 3.00 to 1.00
June 30, 2001 2.80 to 1.00
September 30, 2001 2.40 to 1.00
December 31, 2001 2.40 to 1.00
Thereafter 2.30 to 1.00
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(c) Consolidated Interest Coverage Ratio. Permit the Consolidated
Interest Coverage Ratio for any period of four consecutive fiscal quarters
of the Borrower ending with any fiscal quarter set forth below to be less
than the ratio set forth below opposite such fiscal quarter:
Consolidated Interest
Fiscal Quarter Coverage Ratio
December 31, 1999 Not Applicable
March 31, 2000 Not Applicable
June 30, 2000 Not Applicable
September 30, 2000 Not Applicable
December 31, 2000 1.50 to 1.00
March 31, 2001 1.60 to 1.00
June 30, 2001 1.70 to 1.00
September 30, 2001 1.80 to 1.00
December 31, 2001 1.90 to 1.00
Thereafter 2.00 to 1.00
(d) Consolidated Fixed Charge Coverage Ratio. Permit the
Consolidated Fixed Charge Coverage Ratio for any period of four consecutive
fiscal quarters of the Borrower ending on or after December 31, 2000 to be
less than 1.0 to 1.
(f) Section 7.2 of the Credit Agreement shall be amended by inserting
therein the following new Section (p):
"(p) In addition to Indebtedness permitted by Section 7.2(k) hereof,
Indebtedness of the Borrower and its Subsidiaries to Commodity Credit
Corporation in an aggregate principal amount not to exceed $25,000,000,
provided all of such Indebtedness is incurred between November 15 of any
year and March 14 of the year immediately following and is paid in full
no later than March 15 of the year immediately following."
(g) Section 7.3 of the Credit Agreement shall be amended by inserting
therein the following new Section (q):
"(q) Liens securing Indebtedness of the Borrower and any of its
Subsidiaries incurred pursuant to Section 7.2(p); provided that such
Liens do not at any time encumber any Property other than the specific
sugar or sugar-related products financed by such Indebtedness."
(h) Section 7.5(i) of the Credit Agreement shall be amended to read as
follows:
"(i) additional Dispositions not to exceed an amount (calculated on
the date of any Disposition) equal t 5% of the Borrower's Consolidated
Tangible Assets (determined as of the last day of the most recently
ended fiscal year of the
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Borrower) in the aggregate on a cumulative basis after the Closing
Date, provided that no Default or Event of Default shall occur
hereunder solely as a result of a reduction in the amount of the
Borrower's Consolidated Tangible Assets after the date of a Disposition
that otherwise complied with this Agreement at the time it was made."
(i) Sections 7.6 and 7.7 of the Credit Agreement shall be amended to read
as follows:
"7.6 Limitation on Dividends. Declare or pay any dividend (other
than dividends payable solely in common stock of the Person making such
dividend) on, or make any payment on account of, or set apart assets
for a sinking or other analogous fund for, the purchase, redemption,
defeasance, retirement or other acquisition of, any shares of any class
of Capital Stock of the Borrower or any Subsidiary or any warrants or
options to purchase any such Capital Stock, whether now or hereafter
outstanding, or make any other distribution in respect thereof, either
directly or indirectly, whether in cash or property or in obligations
of the Borrower or any Subsidiary (collectively, "Restricted
Payments"), except that (a) any Subsidiary may make Restricted Payments
to the Borrower or any Wholly Owned Subsidiary Guarantor, (b) so long
as no Event of Default has occurred and is continuing the Borrower may
pay dividends on any class of its preferred stock so long as such
dividends are paid solely in the Borrower's preferred stock of the same
class, and (c) so long as no Event of Default has occurred and is
continuing, the Borrower may (i) pay dividends on its common stock in
an aggregate amount not to exceed $3,000,000 during its fiscal year
ending September 30, 2000, and (ii) in any fiscal year thereafter
continue to pay dividends on its common stock in accordance with past
practice during and before the fiscal year ended September 30, 1999 and
in amounts per share not in excess of recent such amounts.
7.7 Limitation on Capital Expenditures. Make or commit to make (by
way of the acquisition of securities of a Person or otherwise) any
Capital Expenditure or Capitalized Refurbishment Expenditure, except
(i) Capitalized Refurbishment Expenditures of the Borrower and its
Subsidiaries in the ordinary course of business not to exceed
$50,000,000 in any fiscal year, (ii) other Capital Expenditures of the
Borrower and its Subsidiaries in the ordinary course of business not to
exceed (a) $35,000,000 in the fiscal year ending September 30, 2000, or
(b) $45,000,000 in any fiscal year thereafter; provided that any
portion of the amount specified in clause (ii) for any fiscal year that
is not expended in such fiscal year may be carried over to increase the
amount of Capital Expenditures permitted under clause (ii) for the
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immediately succeeding fiscal year and (iii) to the extent the payment
of such purchase prices constitute a Capital Expenditure, Capital
Expenditures in the amount of the purchase prices paid in connection
with the acquisition of DSLT Inc. and WF."
(j) Section 7.8(k) of the Credit Agreement shall be amended by adding the
following provision at the end thereof;
"; and provided further that the aggregate amount of all such
contributions consisting of cash and Cash Equivalents may not exceed
$15,000,000 during the term of this Agreement;".
(k) Section 10.15 of the Credit Agreement shall be amended by adding the
following provision thereto as clause (j):
"or (j) to any direct or indirect contractual counterparty in swap
agreements or such contractual counterparty's professional advisor (so
long as such contractual counterparty or professional advisor to such
contractual counterparty agrees to be bound by the provisions of this
Section 10.15)."
(l) Annex A to the Credit Agreement is hereby replaced by Annex A attached
to this Amendment.
(m) The Required Lenders hereby waive compliance with the requirements of
Sections 7.1(a), 7.1(b) and 7.1(c) of the Credit Agreement for the period of
four consecutive fiscal quarters of the Borrower ended September 30, 1999. This
waiver is limited to the matters set forth herein, and the Borrower remains
obligated to comply with the terms of the Credit Agreement and the other Loan
Documents, including Sections 7.1(a), 7.1(b) and 7.1(c) of the Credit Agreement
as amended by this Amendment, as though this waiver had never been granted.
Section 3. Conditions to Effectiveness. This Amendment (except Section 2(l)
hereof, which shall become effective as of November 18, 1999) shall become
effective as of September 30, 1999 (the "Effective Date") upon satisfaction of
the following conditions precedent:
(a) The execution and delivery of this Amendment by a duly authorized
officer of each of the Borrower, the Agents and the Required Lenders.
(b) Payment of an amendment fee of one-half of one percent (0.5%) of each
Lender's existing Commitment or, with respect to the Term Lenders, the
outstanding principal amount of their Term Loans, to those Lenders that have
executed this Amendment on or prior to November 18, 1999.
Section 4. Representation and Warranties. The Borrower represents
and warrants to each Agent and each Lender that as of the Effective Date, before
and after giving effect to this
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Amendment and after giving effect to the waiver contained in Section 2(m)
hereof: (i) no Default or Event of Default has occurred and is continuing; (ii)
the representations and warranties made by the Borrower in or pursuant to the
Credit Agreement or any Loan Documents are true and correct in all material
respects on and as of the Effective Date as if made on such date (except to the
extent that any such representations and warranties expressly relate to an
earlier date, in which case such representations and warranties were true and
correct in all material respects on and as of such earlier date); and (iii) this
Amendment constitutes the legal, valid and binding obligation of the Borrower,
enforceable against the Borrower in accordance with its terms, except as such
enforcement may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors' rights
generally and by general equitable principles (whether enforcement is sought by
proceedings in equity or at law).
Section 5. Continuing Effect of Credit Agreement. This Amendment shall not
constitute an amendment or waiver of or consent to any provision of the Credit
Agreement not expressly referred to herein and shall not be construed as an
amendment, waiver or consent to any action on the part of the Borrower that
would require an amendment, waiver or consent of the Agents or the Lenders
except as expressly stated herein. Except as expressly consented to hereby, the
provisions of the Credit Agreement are and shall remain in full force and
effect.
Section 6. Expenses. The Borrower agrees to pay and reimburse the Agents
for all of their reasonable costs and out-of-pocket expenses incurred in
connection with the preparation, execution and delivery of this Amendment and
ancillary documents, including, without limitation, the reasonable fees and
disbursements of counsel to the Agents.
Section 7. Counterparts. This Amendment may be executed in any number of
counterparts by the parties hereto, each of which counterparts when so executed
shall be an original, but all counterparts taken together shall constitute one
and the same instrument.
Section 8. Governing Law. This Amendment shall be governed by, and
construed and interpreted in accordance with, the laws of the State of New York.
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In Witness Whereof, the parties hereto have caused this Amendment to be
executed and delivered by their respective duly authorized officers as of the
date first above written.
Imperial Sugar Company
By: /s/ Xxxx X. Xxxxxxx
-----------------------------
Name: Xxxx X. Xxxxxxx
---------------------------
Title: Chief Financial Officer
--------------------------
Xxxxxx Commercial Paper, Inc., as Syndication
Agent and as a Lender
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------
Name: Xxxxxxx Xxxxxxx
---------------------------
Title: __________________________
Xxxxxx Trust and Savings Bank, as
Administrative Agent, Collateral Agent,
Issuing Lender and as a Lender
By: /s/ Xxxxxx X. Xxxx
-----------------------------
Name: Xxxxxx X. Xxxx
---------------------------
Title: Vice President
--------------------------
Wachovia Bank, N.A.
By: /s/ X. Xxxxxxxxx Xxxxx, Jr.
-----------------------------
Name: X. Xxxxxxxxx Rison, Jr.
---------------------------
Title: Vice President
--------------------------
Union Bank of California, N.A.
By: /s/ Xxxxx X. Xxxxxxxxxxx
-----------------------------
Name: XXXXX X. XXXXXXXXXXX
---------------------------
Title: Vice President
--------------------------
8
US Bancorp AG Credit, Inc.
By: /s/ X. X. Xxxxx
---------------------------
Name: Xxxxxx X Xxxxx
-------------------------
Title: Vice President
------------------------
The Bank of New York
By: /s/ X. X. Xxxxx
---------------------------
Name: XXXXXX X. XXXXX
-------------------------
Title: Vice President
------------------------
Cooperatieve Centrale Raiffeisen-
Boerenleenbank B.A., "Rabobank
Nederland" New York Branch
By: /s/ X. X. Xxxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxxx
-------------------------
Title: Vice President
------------------------
By: /s/
---------------------------
Name:
-------------------------
Title: Senior Vice President
------------------------
CoBank, ACB
By: /s/
___________________________
Name:
_________________________
Title: V. P.
------------------------
Frost National Bank
By: /s/ X. X. Xxxxxx
---------------------------
Name: W. Xxxxx Xxxxxx
-------------------------
Title: Senior Vice President
------------------------
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Credit Agricole Indosuez
By: /s/ Xxxxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxxxx X. Xxxxxx
--------------------------------------
Title: First Vice President
-------------------------------------
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
--------------------------------------
Title: Vice President, Manager
-------------------------------------
Xxxxx Fargo Bank (Texas), N.A.
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxx
--------------------------------------
Title: Vice President
-------------------------------------
Balanced High Yield Fund I Ltd.,
By: BHF (USA) Capital Corporation acting as
attorney-in-fact
By: /s/ Xxxx X. XxXxxxxxx
----------------------------------------
Name: Xxxx X. XxXxxxxxx
--------------------------------------
Title: Vice President
-------------------------------------
By: /s/
----------------------------------------
Name:
--------------------------------------
Title: Associate
-------------------------------------
Metropolitan Life Insurance Company
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxx
--------------------------------------
Title: Director
-------------------------------------
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Monument Capital Ltd.
By: Alliance Capital Management L.P., as
Investment Manager
By: Alliance Capital Management Corporation,
as General Partner
By: /s/ Xxxx Xxxxxxxxxxx
----------------------------
Name: XXXX XXXXXXXXXXX
--------------------------
Title: SENIOR VICE PRESIDENT
-------------------------
Oak Mountain Limited
By: Alliance Capital Management L.P., as
Investment Manager
By: Alliance Capital Management Corporation,
as General Partner
By: /s/ Xxxx Xxxxxxxxxxx
----------------------------
Name: XXXX XXXXXXXXXXX
--------------------------
Title: SENIOR VICE PRESIDENT
-------------------------
Xxxxxx Diversified Income Trust
By: /s/ Xxxx X Xxxxxx
----------------------------
Name: Xxxx X Xxxxxx
--------------------------
Title: Vice President
-------------------------
Xxxxxx Variable Trust - Xxxxxx High Yield Fund
By: /s/ Xxxx X Xxxxxx
----------------------------
Name: Xxxx X Xxxxxx
--------------------------
Title: Vice President
-------------------------
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Xxx Xxxxxx CLO I, Ltd.
By: Xxx Xxxxxx Management Inc., as Collateral
Manager
By: /s/ Xxxxxx X. XxXxxxxxx
----------------------------
Name: Xxxxxx X. XxXxxxxxx
--------------------------
Title: President
-------------------------
Xxx Xxxxxx CLO II, Ltd.
By: Xxx Xxxxxx Management Inc., as Collateral
Manager
By: /s/ Xxxxxx X. XxXxxxxxx
----------------------------
Name: Xxxxxx X. XxXxxxxxx
--------------------------
Title: President
-------------------------
Xxx Xxxxxx Senior Income Trust
By: /s/ Xxxxxx X. XxXxxxxxx
----------------------------
Name: Xxxxxx X. XxXxxxxxx
--------------------------
Title: President
-------------------------
Black Diamond CLO 1998 - 1 Ltd.
By: /s/ Xxxx X. Cullihane
----------------------------
Name: XXXX X. CULLIHANE
--------------------------
Title: DIRECTOR
-------------------------
Black Diamond International Funding Ltd.
By: /s/ Xxxxx Xxxx
----------------------------
Name: XXXXX XXXX
--------------------------
Title: Director
-------------------------
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KZH Sterling LLC
By: /s/ Xxxxx Xxxx
----------------------------
Name: Xxxxx Xxxx
--------------------------
Title: Authorized Agent
-------------------------
PAMCO CAYMAN Ltd.
By: Highland Capital Management,
L.P. as collateral Manager
By: /s/ Xxxx Xxxxxxx
----------------------------
Name: Xxxx Xxxxxxx
--------------------------
Title: Senior Portfolio Manager
-------------------------
First Union National Bank
By: /s/
----------------------------
Name:
--------------------------
Title: VP
--------------------------
The Pilgrim Prime Rate Trust
By: Pilgrim Investments Inc. as its Investment
Manager
By: /s/ Xxxxxx Xxxxxx, CFA
----------------------------
Name: XXXXXX XXXXXX, CFA
--------------------------
Title: VICE PRESIDENT
-------------------------
Pilgrim America High Income Investments, Ltd.
(as Assignee)
By: Pilgrim Investments Inc. as its Investment
Manager
By: /s/ Xxxxxx Xxxxxx, CFA
----------------------------
Name: XXXXXX XXXXXX, CFA
--------------------------
Title: VICE PRESIDENT
-------------------------
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Sequils-Pilgrim I Limited
By: Pilgrim Investments Inc. as its Investment
Manager
By: /s/ Xxxxxx Xxxxxx
----------------------------
Name: XXXXXX XXXXXX, CFA
--------------------------
Title: VICE PRESIDENT
-------------------------
Pilgrim CLO 1999 - I Limited
By: Pilgrim Investments Inc. as its Investment
Manager
By: /s/ Xxxxxx Xxxxxx
----------------------------
Name: XXXXXX XXXXXX, CFA
--------------------------
Title: VICE PRESIDENT
-------------------------
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Annex A
PRICING GRID FOR REVOLVING CREDIT LOANS,
SWING LINE LOANS, TERM LOANS A AND COMMITMENT FEES
Consolidated Total Applicable Margin for Applicable Margin for Commitment Fee
Level Leverage Ratio Eurodollar Loans Base Rate Loans Rate
----------------------------------------------------------------------------------------------------------------
V Greater than or equal 3.00% 2.00% 0.5%
to 5.00 to 1.00
----------------------------------------------------------------------------------------------------------------
IV Less than 5.00 to 1.00 2.75% 1.75% 0.5%
but greater than or
equal to 4.50 to 1.00
----------------------------------------------------------------------------------------------------------------
III Less than 4.50 to 1.00 2.50% 1.50% 0.375%
but greater than or
equal to 4.00 to 1.00
----------------------------------------------------------------------------------------------------------------
II Less than 4.00 to 1.00 2.25% 1.25% 0.375%
but greater than or
equal to 3.50 to 1.00
----------------------------------------------------------------------------------------------------------------
I Less than 3.50 to 1.00 1.75% 0.75% 0.25%
----------------------------------------------------------------------------------------------------------------
PRICING GRID FOR TRANCHE B TERM LOANS
Consolidated Total Applicable Margin for Applicable Margin for Base
Level Leverage Ratio Eurodollar Loans Rate Loans
------------------------------------------------------------------------------------------------------
II Greater than or equal to 4.0% 3.00%
4.75 to 1.00
-------------------------------------------------------------------------------------------------------
I Less than 4.75 to 1.00 3.50% 2.50%
-------------------------------------------------------------------------------------------------------
During the period commencing on November 18, 1999 and ending June 30, 2000
the Applicable Margins on Revolving Credit Loans, Swingline Loans, Term Loans A
and the Commitment Fee Rate shall be those set forth in Level V and the
Applicable Margins for Tranche B Term Loans shall be those set forth in Level
II. Changes in the Applicable Margin with respect to Tranche A Term Loans,
Tranche B Term Loans, Revolving Credit Loans, Swing Line Loans or in the
Commitment Fee Rate resulting from changes in the Consolidated Total Leverage
Ratio shall become effective on the date (the "Adjustment Date") on which
financial statements are delivered to the Lenders pursuant to Section 6.1 (but
in any event not later than the 50th day after the end of each of the first
three quarterly periods of each fiscal year or the 100th day after the end of
each fiscal year, as the case may be) and shall remain in effect until the next
change to be effected pursuant to this paragraph. If any financial statements
referred to above are not delivered within the time periods specified above,
then, until such financial statements are delivered, the Consolidated Total
Leverage Ratio as at the end of the fiscal period that would have been covered
thereby shall for the purposes of this definition be deemed to be greater than
5.00 to 1.00. In addition, at all times while an Event of Default shall have
occurred and be continuing, the Consolidated Total Leverage Ratio shall for the
purposes of this definition be deemed to be greater than 5.00 to 1.00. Each
determination of the Consolidated Total Leverage Ratio pursuant to this
definition shall be made with respect to the period of four consecutive fiscal
quarters of the Borrower ending at the end of the period covered by the relevant
financial statements.
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